20 comments:

I love your blog, but didn't like your Times column. I also watched that wonderful debate that your column referenced. In my opinion, your column did not present the true main question. It was not whether foreign law can be mentioned like a literary allusion, but rather, whether it should have weight in determining the actual court decision.

David: The problem is when foreign opinions are treated as authorative rather than merely for their persuasive value. The Justices who use foreign law are not mistakenly viewing them as authority. It is a false charge -- and one that has been ridiculously overheated (with threats of impeachment).

I wonder why they don't mention or link to this blog or your area of expertise. These omissions are more forgivable in the print edition as there is limited space, but the NYT would improve their presence on the web if they did simple things like providing links to the other thoughts and projects of those they choose to feature.

I suspect that this blog as much as your position at UW are responsible for their choice of including your views.

Now as far as the quote you chose to pull, I am curious as to your and other commenters' views regarding what the ideal number of Justices would be to achieve the proper balance of "a variety of judges".

More Justices (say 15) would likely lead to more diversity of thought and experience, but too many and it would become unwieldly, plus the transition would be politically harrowing.

I've always felt that if change was a good idea, that drastic changes might be better, so let me propose a wild scheme. 7 courts of 7 Justices each court getting one vote. The top court would sit in DC and be much like the current Supreme Court but their deliberations would be viewed by 6 other courts from around the country who would participate more like a jury rather than like judges. They would watch listen and recieve all the materials (by virtue of the wonders of this technological age), but direct questions, and choosing the cases would be up to the top court only. With 49 Justices there would bound to be greater diversity and these 6 other courts could act like District Courts when the full Supreme Court wasn't in session (they'd need to earn their keep after all).

Again that's a wild plan but one that I believe has some merits, but of course the devil would be in the details.

Ann - This whole argument betrays intellectual parochialism and an ignorance of history. I agree with you that eschewing the instructive benefits of foreign law is ridiculous; especially since the American constitution itself is based on the Magna Carta and the un-codified constitution of the UK; not to mention the enlightened influences of John Locke (amongst other foreign influences).

Moreover, I do not think that these foreign influences should injected into American jurisprudence only through the world views of sitting judges. Kennedy was right to cite foreign judicial opinions to put the opinion of the US Supreme Court into proper perspective.

Therefore, to the extent Roberts counters Kennedy and embraces this absurd judicial xenophobia, he is an intellectual fraud!

Note that many Supreme Court cases from the first half-century or so of that institution cite British case law as if it were authoritative on contract, tort and real property questions. The same is true of early state courts.

Jeffrey Toobin has an article in the New Yorker, in which he writes, "However, beginning in the late nineteen-nineties, the Court's more liberal members began citing foreign sources to help interpret the Constitution on basic questions of individual liberties-for which the laws of foreign democracies tend to be more progressive than those at home. In 1999, Justice Stephen Breyer protested the Court's refusal to hear the appeal of a prisoner who argued that spending more than two decades on death row amounted to cruel and unusual punishment, and thus violated the Eighth Amendment. Quoting legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights, Breyer observed in a dissenting opinion in Knight v. Florida that 'a growing number of courts outside the United States . . . have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading or unusually cruel.' More recently, in an opinion concurring with the Court's decision to uphold the affirmative-action program at the University of Michigan Law School, Justice Ruth Bader Ginsburg relied on the United Nations' International Convention on the Elimination of All Forms of Racial Discrimination. (In speeches, O'Connor has endorsed the use of foreign sources, but she has rarely mentioned them in constitutional-law opinions.)" See http://www.freerepublic.com/focus/f-news/1487260/posts

The Zimbabwe example came up in the Scalia-Breyer debate. I think it proves Roberts's point. When Breyer used Zimbabwe to reinterpret American Constitutional liberties it proved that he was looking for an excuse to rule in accordance with his preferred policy choice. Obviously, Zimbzabwe is an awful model for civil liberties.

Here is an example of the difference between using foreign law as "authoritative" rather than "persuasive".

If one was using foreign law as "authoriative", one might say: In reaching my decision I "relied on" foreign law. This is what Toobin says that Ginsburg did in her concurring opinion in the Michigan Law School affirmative action case.

If one was using foreign law as "persuasive", one might say: Having reached my decision, I would observe that the decision "accords with" foreign law. Which is essentially what Ginsburg said in her concurring opinion (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-241#concurrence1).

I suspect that if one does not like the conclusion the Justice reaches, her use of foreign law will come accross as using it is as authority regardless of the text.

I am much less worried about, for example, looking at the rest of the world for examples of what is cruel and unusual punishment than I am at using it to support Affirmative Action. The former seems to me to be more of an absolute, whereas the later a political decision.

On the other hand, when you are talking about execution being Cruel and Unusual, you are really making a value judgement as to its purpose - which is arguably a political decision. In the U.S., we seem to have accepted that societal retribution (and making an example) is a legitimate concern, whereas this is not as well accepted, for example, in western Europe.

Let me add to my last point that utilizing foreign precedent to limit executions this way can be seen as bootstrapping foreign (esp. western European) philosophy on punishment and retribution into U.S. law, bypassing our democratically derived solutions to this debate. In short, imposing the beliefs of the judges over those of the people.

I do not categorically object to the persuasive use of foreign law in judicial systems, but I think that the burden to demonstrate its relevance and its actual persuasiveness should be on those who wish to use it. For example, in interpreting American constructs of English common law, it is pretty clearly probative as to original intent. But in more recent uses, it seems that the justice assumes that it as self-evident that American law ought to accord with the law of other countries, without bothering to explain why, or whether the foreign laws actually are congruous.

If Americans go through the trouble of crafting their own laws, then the Supreme Court at least owes them the courtesy of an explanation of why the opinions of people in other countries matter more to them than those of Americans.

Ann,In an otherwise gloomy week for an originalist watching the hearings, Roberts' disavowal of foreign law - and the presumed role of a Judge that permits its use - was one of the only rays of sunshine. I must join the chorus of dissent.

While I appreciate your willingness to concede that foreign opinions should never be treated as authoritative, I can't help but wonder why you seem to assume that they have any value even as persuasive. I'd be interested to read you countering comments I offered here, or to just generally explain why the opinion of a foreign judge would even be persuasive?

What I mean to say is, why would the opinion of a judge in another country, who is operating under an entirely separate set of background cultural assumptions, who is operating under a completely different constitution and set of laws, who comes from an entirely separate legal tradition, tell us anything pursuasive about OUR laws or OUR constitution?

What's missing from the pro-foreign law side is a decent explanation of why a foreign decision would be in ANY way relevant to American jurisprudence. It seems to me that until that basic question is answered, the questions of whether its use should be pursuasive or authoritative are moot. Why is it relevant?

Incidentally, I have to offer a rejoinder to those who cry inconsistency to those of us who claim that foreign law is useless but who still have the temerity to refer to Blackstone or pre-revolutionary English law. Can you not see that these are entirely separate questions? The English and pre-1776 Anglo-American common law stands as part of this nation's legal heritage. Of course it is entirely relevant to a discussion of the meaning of the constitution and the development of American jurisprudence; it is crucial to remember that the colonies that became states were BRITISH colonies, and therefore, their legal traditions were imported primarily from England. But what is not relevant is subsequent decisions of foreign courts which do not share that heritage, or even decisions of English courts subsequent to the bifurcation of Anglo-American law.

That depends. I mean, you're right that complaining about using foreign law begs the question as to what about other secondary materials, be they law review citations or ancient chinese proverbs.

I think the answer has to do with relevance and cultural context. If you look, for example, at the case which Ann noted Breyer and Scalia sparring with different quotations - Plaut v. Spendthrift Farm - I would say they are merely being offered as a side issue. They are less pursuasive than they are decorative. In the course of his opinion for the court, Justice Scalia cites no fewer than 38 cases, seven miscelleneous papers, six books, three law review articles, two sections of the U.S. code and one section of the federal rules of civil procedure; the passage from Robert Frost fills the last sentence of the last paragraph of the opinion. The suggestion that it is intended to be anything other than a rhetorical flourish to conclude the opinion - let alone "pursuasive" seems utterly absurd; I simply cannot imagine that Justice Souter was planning all along to join the opinion of Justice Stevens, but having been utterly unpursuaded by the voluminous materials offered by Justice Scalia across 8236 words, suddenly saw the light on the strength of a five-word quotation from Frost.

Furthermore, I think that inserting a witticism or a proverb is probably fair game, on the assumption that it tells us something that we recognize in logic or wisdom. So it has some relevance. Likewise, a law review discusses American law, written in an American legal tradition. So it has some relevance. What is it that discussing foreign law tells us? I think there is a major difference between Justice Thomas citing Randy Barnett's work on the meaning of the commerce clause and Justice Kennedy telling us that European nations have abolished the death penalty for children; I think there is a difference between a snarky remark from Scalia that even a broken watch is right twice a day, which is self-evidently true, and Justice Kennedy telling us that most European nations do not ban sodomy. What's the relevance? The majority of countries around the world DO ban sodomy - who cares? Even assuming that other countries have adopted their laws democratically, rather than having them forced on them a la lawrence, How is that in any way relevant to whether AMERICANS want to do something? Most European coutries have laws against gun ownership. Is this relevant to whether America does or should? No, but I would hardly be surprised to read a Breyer opinion which tried to use the fact that most other nations do not allow their citizens to keep and bear arms as "pursuasive" reasoning for voiding the second amendment.

So I don't think it has pursuasive value because it simply has no relevance. Other secondary materials MAY be included as pursuasive, to the extent that they are relevant to the material at hand. it's not a question of whether materials have a democratic base, which is Breyer's favorite straw man in defending what he does, it's a question of, can this material possibly tell us anything that is relevant to the question. And I submit that with foreign precedent, the answer is no.

1using a foreign source of law that has been specified in advance (the founders all knew the were basing the USA on the Magna Carta and English common law, among other things) and

2opening the floodgates by agreeing in advance that any extra-national law can have precential value, at the judges' discretion.

I agree with Ann:There's nothing wrong with looking at foreign opinions to get a sense of the logic (and possibly wisdom) the foreign judges use to come to their decisions. I think there's a real distinction between that, and actually according precedential value to foreign opinions.